Boland Act Fly In The Ointment

COMMENTARY

Rep. Dick Cheney, R-Wy., wryly observed that Marine Lt. Col. Oliver North looked ``like a man with a lot of legal problems.`` That may turn out to be the understatement of the year.

When North appears before congressional investigators next week, one can be sure his legal team will have left no option unexplored in his defense.

One alternative being considered by the North team is to use the ``advice of counsel`` defense which suggests that the former National Security Council adviser was merely obeying the legal opinion of the President`s Intelligence Oversight Board in aiding the Contras.

At issue is the statutory construction of the second Boland amendment. It could determine the guilt of North and possibly the president.

The key paragraph of the second Boland amendment, which was in effect between Oct. 3, 1984, and Sept. 30, 1985, and appears in both the Defense Appropriations Act of 1985 and the Intelligence Authorization Act for fiscal 1985, reads as follows:

``During fiscal year 1985, no funds available to the Central Intelligence Agency, the Department of Defense or any agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement or individual.``

But when a New York Times article appeared on Aug. 8, 1985, suggesting that North was violating the restrictions of the second Boland amendment, Rep. Michael Barnes, D-Md., wrote a letter of complaint to Robert McFarlane, then President Reagan`s national security adviser.

In a Sept. 12, 1985, letter, McFarlane assured House Foreign Affairs subcommittee chairman Barnes that ``my actions and those of my staff have been made in compliance with both the spirit and the letter of the law.`` Though McFarlane`s reply was not a legal opinion on the Boland Amendment, it served as evidence that the Reagan administration had interpreted this amendment to mean that the NSC was ``... an entity of the United States involved in intelligence activities ...``

The only legal opinion from the Reagan administration on the Boland amendment has come from the President`s Intelligence Oversight Board, which is composed of three part-time members. It stated that the NSC was not an ``agency or entity ... involved in intelligence activities`` and thus not covered by the congressional restriction.

Unfortunately, legislative history does not support the legal opinion drafted by counsel Bretton Sciaroni of the President`s Intelligence Oversight Board. On Dec. 4, 1981, President Reagan issued Executive Order No. 12,333, which covered the conduct of intelligence activities by U.S. government agencies. Section 1.2 of the order specifically declares that the NSC is the principal government agency responsible for intelligence activities.

In the coming weeks, the logic of Sciaroni`s opinion will become increasingly critical to the legality of a former covert operation and the innocence of more than one presidential appointee.